Dispute as to Discriminatory Intent Supports Denial of Summary Judgment as to Plaintiff’s Hostile Work Environment Claim

In Refermat v. Lancaster Central School District, 14-CV-0712, 2018 WL 3640220 (W.D.N.Y. Aug. 1, 2018), the court adopted a Magistrate Judge’s Report and Recommendation to grant defendant’s summary judgment motion as to plaintiff’s constructive discharge claim, but to deny it as to plaintiff’s hostile work environment and retaliation claims.

In this blog post I will discuss the court’s evaluation of plaintiff’s hostile work environment claim.

As to that claim, the court explained the applicable law:

The “because of” inquiry in a hostile work environment case is a question of intent—that is, “the reasons for the individual plaintiff’s treatment.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis omitted). As with most forms of scienter, discriminatory intent must often be proven with circumstantial evidence, because “direct evidence of that intent will only rarely be available.” Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008). Thus, as the Second Circuit has repeatedly recognized, resolving questions of intent—particularly in employment discrimination cases—“often requires an assessment of individuals’ motivations and state of mind, matters that call for a sparing use of the summary judgment device because of juries’ specialized advantages over judges in this area.”

The court next applied the law:

With this standard in mind, the Court agrees with Judge Roemer that summary judgment is inappropriate for the Plaintiff’s hostile work environment claims. Viewing the evidence in the light most favorable to the Plaintiff, the District has failed to show that Mowry’s intent is not genuinely disputed. The Plaintiff recognizes that she has no “smoking gun” evidence of intent. Docket No. 47 at 3. Thus, evidence of intent in this case “requires some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory.” Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). The Plaintiff has offered circumstantial evidence from which a jury could reasonably infer that Mowry’s alleged harassment was “because of” her gender and age.

The Plaintiff, for instance, offered evidence that Mowry offered a younger female employee various forms of special treatment (Docket No. 34-8), and that he declined to suspend that employee—who admitted being “chronically several minutes late to work”—while suspending an older female employee who “was also chronically late to work.” Id. at 3. The Plaintiff also offered other evidence (some of it, to be sure, somewhat conclusory) alleging that Mowry treated older, female employees differently than younger male and female employees. See, e.g., Docket No. 34-10 ¶ 2 (“I have observed older women that were summoned to Supervisor Mowry’s office for discipline leaving very upset and some even crying, while younger females leave smiling and laughing.”); Docket No. 34-14 (“Mr. Mowry has an established record as to the harassment of older women. His behavior is quite different toward younger women/men. I was there when older women resigned because of the harassment and threats they received from Mr. Mowry. I was there when an older female complained because her bus was cold so Mr. Mowry to have her wash her bus [sic] outside in sub-zero temperatures.”); Docket No. 35 ¶¶ 10-12, 30 (“I worked at the District for over 20 years and I never witnessed [Mowry] yell at, intimidate or demean men the way he did [the Plaintiff] and I.”) As Judge Roemer concluded, “this evidence is sufficient to raise a triable issue of fact as to whether Mowry’s conduct was undertaken based upon [P]laintiff’s age and gender.”